Friday, April 9, 2010
Brian Sawers (O'Connor Fellow, Arizona State) has posted Is the Right to Exclude Fundamental to Property? The abstract:
Kaiser Aetna identifies the right to exclude as a core element of property, without distinguishing improved from unimproved land. This Article argues that the Constitution does not mandate landowner’s right to exclude from unimproved land. Most scholarship assume a right to exclude and ignores the role that race played in the development of the doctrine. Kaiser Aetna and its progeny inappropriately federalize property law, a matter best left to the states. When policing conflict, this Article proposes that competing uses should guide the inquiry.